Van Vleck v. Leikin, Ingber & Winters, P.C.

VINCE NICOLAS VAN VLECK, Plaintiff, v. LEIKIN, INGBER & WINTERS, P.C., Defendant.

Case No. 20-11635

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

March 31, 2021

Stephanie Dawkins Davis United States District Judge

OPINION AND ORDER GRANTING MOTION TO DISMISS (ECF No. 26) AND TERMINATING ALL PENDING MOTIONS AS MOOT (ECF Nos. 9, 38, 43)

I. PROCEDURAL HISTORY

Plaintiff, Vince Nicolas Van Vleck, filed this lawsuit against the law firm of Leikin, Inger & Winters, PC on June 22, 2020. (ECF No. 1). Van Vleck asserts violations of the Fair Debt Collections Practices Act, 15 U.S.C. § 1692 et seq. (FDCPA) arising from defendant's in-person service of process on Van Vleck while the Michigan Governor's declaration of emergency and stay-at-home orders were in place due to the COVID-19 pandemic. Defendant has filed a motion to dismiss the complaint, arguing that Van Vleck has failed to sufficiently allege Article III standing to assert his claims under the FDCPA. (ECF No. 26). That motion is fully briefed, and the Court held a video hearing on the motion on March 17, 2021, pursuant to notice. (ECF Nos. 28, 32, 42).

For the reasons set forth below, the court concludes that Van Vleck has not sufficiently alleged Article III standing to assert his claims under the FDCPA and accordingly, his complaint is DISMISSED.

II. FACTUAL BACKGROUND

On April 23, 2020, Van Vleck was personally served with a suit filed by Ingber to collect a debt owed to Ingber's client. (ECF 1, PageID.9, ¶ 30). Van Vleck believed that, because of the process server's age, the process server "was at a high risk group to [sic] the effects of COVID-19" and therefore "could be a super spreader" of the COVID-19 virus. Id. at ¶ 43, PageID.11. Van Vleck cried after being served because he was afraid he had caught COVID-19 and would give it to his family. Id. at ¶ 46, PageID.12. He also spoke to his doctor about his contact with the process server. Id. at ¶ 47, PageID.12.

The summons served on Van Vleck was the SCAO¹ form that is pre-printed to indicate that a defendant has 21 days after personal service to answer the complaint. (ECF 1-1, PageID.27). The SCAO form did not disclose that, on March 23, 2020, the Michigan Supreme Court suspended the need to a respond to a complaint during the period of the COVID-19 state of emergency. (ECF No. 1, ¶ 24, PageID.6; Mich. Sup. Ct. Adm. Order 2020-03). Van Vleck contends thatdefendant's actions violated the FDCPA and Michigan's Regulation of Collection Practices Act (RCPA) as it relates to him because serving process during the period in which the State of Michigan was under various orders restricting public gatherings was "harassment," under §§ 1692c and 1692d. He also alleges that the use of the SCAO form violated the rights of a class of people because the representation in the SCAO summons that the plaintiff had 21 days to answer the complaint in the Collection Case was false or misleading, in violation of § 1692e.

III. DISCUSSION

A. Standard of Review

A challenge to a party's Article III standing invokes a federal court's subject matter jurisdiction and is properly raised by a motion made under Federal Rule of Civil Procedure 12(b)(1). In re Blasingame, 585 B.R. 850, 858 (B.A.P. 6th Cir. 2018), aff'd, 920 F.3d 384 (6th Cir. 2019) (citing Allstate Ins. Co. v. Global Med. Billing, Inc., 520 Fed. Appx. 409, 410-11 (6th Cir. 2013) (unpublished) (citations omitted); Kepley v. Lanz, 715 F.3d 969, 972 (6th Cir. 2013)). As explained in McQueary v. Colvin, 2017 WL 63034, at *3 (W.D. Ky. Jan. 5, 2017), a Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction "can challenge the sufficiency of the pleading itself (facial attack) or the factual existence of subject matter jurisdiction (factual attack)." Cartwright v. Garner, 751 F.3d 752, 759 (6th Cir. 2014) (citing United States v. Ritchie, 15 F.3d 592, 598 (6th Cir.1994)). "A facial attack is a challenge to the sufficiency of the pleading itself. On such a motion, the court must take the material allegations of the petition as true and construed in the light most favorable to the nonmoving party." McQueary, at *3 (quoting Ritchie, 15 F.3d at 598); see also Cartwright, 751 F.3d at 759 ("A facial attack goes to the question of whether the plaintiff has alleged a basis for subject matter jurisdiction, and the Court takes the allegations of the complaint as true for purposes of the Rule 12(b)(1) analysis"). "A factual attack, on the other hand, is not a challenge to the sufficiency of the pleading's allegations, but a challenge to the factual existence of subject matter jurisdiction." McQueary, at *3 (quoting Ritchie, 15 F.3d at 598). And, where a plaintiff relies on evidence outside the complaint to support a standing claim, the challenge is factual, and the Court instead must assess the factual basis for jurisdiction by weighing the evidence tendered. Forgy v. Stumbo, 378 F. Supp. 2d 774, 776 (E.D. Ky. 2005) (citing DLX, Inc. v. Kentucky, 381 F.3d 511, 516 (6th Cir. 2004)); see also Kardules v. City of Columbus, 95 F.3d 1335, 1347 n. 4 (6th Cir. 1996) (The Sixth Circuit has recognized a district court's authority to consider extrinsic evidence when addressing the issue of standing.). Here, defendant makes a facial attack, asserting that Van Vleck's complaint fails to identify a sufficiently concrete harm, as required by Article III, except as to the assertion that Van Vleck fails to show his injury is akin to battery, where defendant relies on evidence outside the complaint.

B. Standing

Article III of the Constitution empowers the federal judiciary to decide "Cases" and "Controversies," U.S. CONST. art. III, § 2, "a limitation long understood to confine the federal courts to concrete disputes presented in a form historically recognized as appropriate for judicial resolution in the Anglo-American legal tradition." Larkin v. Finance System of Green Bay, Inc., 982 F.3d 1060 (7th Cir. 2020) (citing DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 341 (2006). To invoke the jurisdiction of a federal court, a plaintiff must demonstrate that he has standing to sue, a requirement "rooted in the traditional understanding of a case or controversy." Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016). Spokeo, 136 S. Ct. at 1547. To establish standing, a plaintiff has the burden to establish that he has "(1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial ruling." Id. At the pleading stage, the standing inquiry asks whether the complaint "clearly ... allege[s] facts demonstrating each element" of the standing inquiry. Id. (quotation marks omitted).

As discussed below, the primary dispute before the court is whether Van Vleck suffered an injury in fact. "To establish injury in fact, a plaintiff must show that he or she suffered 'an invasion of a legally protected interest' that is 'concrete and particularized' and 'actual or imminent, not conjectural or hypothetical.'" Id.at 1548 (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)). The key question here is whether Van Vleck has alleged an injury that is "both concrete and particularized." Id.

As the Larkin court explains, particularization is generally easy to understand. An injury is particularized if it "affect[s] the plaintiff in a personal and individual way." Id. (quoting Lujan, 504 U.S. at 560 n.1). The claimed injury cannot be a generalized grievance shared by all members of the public. DaimlerChrysler Corp., 547 U.S. at 342-44. Rather, the plaintiff himself must have personally suffered an actual injury or an imminent threat of injury. Id.; see also Thole v. U.S. Bank N.A., 140 S. Ct. 1615, 1619 (2020) (affirming a dismissal for lack of standing because the plaintiffs themselves had no stake in the lawsuit). On the other hand, concreteness is more challenging. "A concrete injury must be de facto; that is, it must actually exist." Larkin, 982 F.3d at 1064 (quoting Spokeo, 136 S. Ct. at 1548 (quotation marks omitted)). That is, a concrete injury is one that is "real, ... not abstract." Id. (quotation marks omitted). But "concrete" does not necessarily mean "tangible." Both tangible and intangible harms can satisfy the concreteness requirement, although tangible injuries—e.g., physical harms and monetary losses—are "easier to recognize." Id. at 1549.

Larkin further explains that intangible harms often raise more difficult injury-in-fact questions. In the context of suits seeking relief for statutoryviolations, "both history and the judgment of Congress play important roles" in the analysis. Id. (citation omitted). Congress may identify and elevate historically non-cognizable intangible harms to the status of cognizable injuries, and when it does so, "its judgment is ... instructive and important." Id. But congressional judgment is not conclusive. Instead, as the Supreme Court emphasized in Spokeo, a congressional decision to create a cause of action "does not mean that a plaintiff automatically satisfies the injury-in-fact requirement whenever a statute grants a person a statutory right and purports to authorize that person to sue to vindicate that right." Id. Because Congress cannot override the case-or-controversy requirement, "Article III standing requires a concrete injury even in the context of a statutory violation." Id. With these principles in mind, the court will evaluate Van Vleck's contention that he has alleged a sufficiently concrete injury and thus has standing to assert the claims in this lawsuit.

1. Count I - 15 U.S.C. §§ 1692d(1) and 1692c(a)(1)

Van Vleck alleges the personal service of a summons and complaint in a debt collection matter was not necessary to sustain or protect life or to conduct minimum basic operations under the Governor's EO. Accordingly, Van Vleck maintains that defendant violated the EO by effectuating personal service on Van...